Why the Democrats Should Not Block Gorsuch

The vote on the confirmation of Judge Neil Gorsuch to the Supreme Court will be a turning point in the history of American governance. The battle over Gorsuch’s nomination has brought the extreme ideological polarization of the American government to dizzying heights, pitting Democrats and Republicans against one another in an epic political showdown. Last year, the Republican-controlled Senate took the unprecedented step of refusing to hold preliminary hearings for President Obama’s Supreme Court nominee, Judge Merrick Garland, arguing that the next president should make the nomination. After the election of Donald Trump as President, the Republicans now hold the reigns in appointing the next Supreme Court Justice. Yet, the GOP stands eight party votes short of the supermajority of 60 votes needed to invoke cloture. Meanwhile, a contentious debate has broken out among Democratic over whether or not to filibuster Gorsuch’s appointment. However bitter the pill may be, the Democrats should allow the confirmation of Neil Gorsuch to the Supreme Court.

By far the most simple reason for allowing the nomination is that Judge Gorsuch is an eminently qualified candidate. When partisanship is shoved aside, it becomes clear that Gorsuch checks all the boxes as a deserving member of the Supreme Court. His legal education is world-class: he holds a law degree from Harvard and a doctorate in jurisprudence from Oxford. He boasts a laundry list of first-rate experience in the legal world, from his time as a clerk for both Justice Byron White and Justice Anthony Kennedy to his decade-long tenure as a judge on the US Court of Appeals for the 10th Circuit. Many Democrats point out that Merrick Garland, a fellow Harvard graduate and the chief judge of the United States Court of Appeals for the District of Columbia Circuit, was as well-qualified a candidate as Gorsuch. However, to use the travesty of the GOP’s treatment of Garland as a sort of “eye for an eye” reason to block Gorsuch would be only succeed in continuing the cycle of polarization.

Once upon a time, Gorsuch’s sparkling pedigree would have all but ensured his appointment to the Supreme Court, regardless of political leanings. Incidentally, it is due to the hyper-partisan spillover into Supreme Court proceedings over the past few decades that Gorsuch’s nomination has been thrown into doubt at all. Supreme Court nominations were once a relatively uncontroversial process, with nominees such as Justice Scalia and Justice Ginsberg being confirmed by large margins. Yet, as the gap between political parties has widened over the years, the process has steadily become fraught with controversy, all the way up to uncivil treatment of Merrick Garland. Ultimately, the Democrats must resist the urge to act in retaliation over the injustice done to Garland, as perpetuating the vacuous “they started it” mentality will only exacerbate the ideological gridlock over court nominations.

What’s more, a Democratic attempt to obstruct Gorsuch’s appointment would be futile and have devastating consequences. Indeed, if the Democrats do try to filibuster Gorsuch, the Republicans will most likely force through his nomination using the so-called “nuclear option.” The nuclear option involves changing the Senate rules so that a nomination only requires 50 votes to be approved, rather than the standard supermajority of 60 votes. If enacted now, this move would essentially destroy the power of the filibuster for nominees, as the majority party would have the power to override opposition with a simple majority. The Republicans have essentially guaranteed that they are prepared to exercise the nuclear option if necessary, with party leaders such as Mitch McConnell and President Trump pushing for it in recent days. A Democratic effort to block the nomination will accomplish nothing but score empty political points. Plus, if the Republicans go through with the nuclear option, the Senate will lose much of its unique protections of minority power.

Already, the damaging effects of removing the filibuster have been seen in the Senate. During 2013, Harry Reid and the Democratic party exercised the nuclear option as it applies to appointing federal judges (below the Supreme Court) and executive office positions. This enabled them to confirm dozens of Obama court nominees and executive branch officials that had been blocked by GOP filibusters for months. Yet, while this move may have paid off for the Democrats four years ago, it came back to haunt them when President Trump was able to fill many of his administration’s positions without achieving a supermajority – including controversial picks such as Jeff Sessions as Attorney General or Betsy DeVos as Secretary of Education.

In these instances, the minority party in the Senate had virtually no say in the appointees, dangerously allowing the ruling party to force through whomever they pleased. The use of nuclear option greatly damages the ideal of a fair and balanced Senate, as the majority party is empowered to ignore the will of the minority. Moreover, while the current GOP plans keep the filibuster for legislation, many fear that killing the legislative filibuster would be the next step. If this becomes the case, no longer would the lesser party have any effect whatsoever on the rules and laws that are passed, as the the ruling party would be able to force through anything with a simple majority.

Another consequence of a Democratic obstruction of Gorsuch is the continued imbalance of the number of Supreme Court justices. Since 1869, the Supreme Court has consisted of one chief justice along with eight associate justices- for a total of nine judges. This odd number of justices directly relates to the court’s capacity to carry out its duty of deciding cases, as it makes it impossible for split decisions to occur. However, since Justice Scalia’s death in early 2016, only eight justices have sat on the court. As the current ideological breakdown of the court splits evenly between liberals and conservatives – albeit with Justice Breyer and Justice Kennedy occasionally voting across the political spectrum – the continued absence of a ninth judge harms the court’s ability to firmly decide cases. As Justice Ginsburg commented at her most recent annual address to the Second Circuit Judicial Conference, “Eight, as you know, is not a good number for a multimember court… I think we need somebody there to do the job now.”

Indeed, since Scalia’s death, several Supreme Court cases have resulted in split decisions. What’s more, multiple cases on the court’s existing docket deal with highly polarizing issues, promising more splits to come if the justice count remains at eight. For example, the recent Friedrichs v. California Teachers Association case, which centered around the ability of public unions to collect fees from non-unionized workers, ended in a 4-4 tie amongst court justices. As a result, the final ruling was left to a lower court, which ultimately upheld the decree that all teachers pay the union fees. While the Democrats may have celebrated this particular outcome, the Supreme Court cannot fulfill its sole duty without a proper number of judges. Several other upcoming, consequential cases that deal with issues such as voting rights and state restrictions on abortion services are likely to also end in ties between the eight judges. These splits only drain the power of the highest court in the land. Consequently, the Democrats must restore the Supreme Court to its full capacity by allowing the appointment of Judge Gorsuch.

Democrats do have incentives to block Gorsuch’s nomination. Leaving the court with only eight justices for the foreseeable future could actually work in their favor, as it keeps an even balance between conservatives and liberals. This leads to split-decisions that may actually result in pro-Democrat outcomes, like with the Friedrichs case. Allowing Gorsuch to take his spot as a justice would not only result in a court that leans to the right, but also add an individual that will firmly vote against liberal ideals for decades to come. Gorsuch’s philosophy of “natural law,” which holds that judges can appeal to moral belief systems to adjudicate a case, signals that he will likely be a staunch opponent of abortion, physician-assisted suicide, and women’s reproductive rights in general. Thus, instead of standing aside for Gorsuch, the Democrats could continue to hold out with eight justices and hope to gain control of the Senate during the 2018 elections. However, these hypotheticals all become irrelevant when considering the GOP’s inevitable use of the nuclear option to force Gorsuch’s appointment.

Ultimately, it is clear that a Democratic attempt to stop the nomination of Judge Gorsuch would not only be fruitless, but would actually lead to increased partisan polarization and further crumbling of integral governmental procedure. Even in the unlikely event that the Democrats do succeed, this would only handicap the Supreme Court’s obligation to come to a majority decision on cases- as well as bring further ideological-driven headache to future nomination processes. On the other hand, the vote on Gorsuch’s appointment represents a chance for Democrats to move the country in a positive direction. It may sound idealistic, but if the Democrats choose to take the high road and cooperate with Republicans in allowing a deserving nominee to move forward, it could be the first step in restoring reason to the Supreme Court nomination votes. This, by extension, could help chip away at the partisan gridlock that has brought acute harm to the American government in recent decades. The slow road back to political cooperation has to start somewhere, and Democrats must now ask themselves: “why not here?”